Judicial battle over crop protection

Once again a federal agency has drafted an opinion that has put agriculture in the crosshairs while blatantly highlighting the tendency of government to run amok.

Case in point: A recent biological opinion from the National Marine Fisheries Service (NMFS) that erroneously concluded that a number of crop protection chemicals were likely to threaten endangered salmon and steelhead in the Pacific Northwest. If implemented unchanged, this decision will require new restrictions on crop protection products based on flawed modeling without validation or peer review.

Never mind the fact that the NMFS assessment has been strongly criticized in initial review by the U.S. Environmental Protection Agency and the California Department of Pesticide Regulation. These entities found the opinion lacking a solid scientific basis for concluding that federal and state authorized uses of chlorpyrifos, diazinon and malathion pose a risk to salmon.

Completely ignore the fact that the NMFS decision was similarly criticized by the Washington State Department of Agriculture for its heavy reliance on the use of hypothetical worst case scenarios without considering the mounds of extensive, readily available water monitoring data that has already been conducted for these three products.

Disregard the fact that a highly precautionary approach to the protection of salmon is already in place under existing science-based regulations. NMFS even failed to consider significant additional restrictions imposed (or soon to be imposed) by U.S. regulators in the normal process of regulatory review. These new restrictions will not reliably increase protections to salmon, but will unnecessarily impact the availability of products to growers.

Truth be told, part of the reason for the many flaws in the NMFS opinion is that it was prepared to meet deadlines imposed by environmental activists pressuring the courts to intervene, which limited the time available for a science-based evaluation.

But the court system and federal regulators quickly discovered that two can play at the same game. On April Fools’ Day (you have to appreciate the timing on this) agchem manufacturers struck back, filing a lawsuit of their own in the U.S. District Court for the District of Maryland, Greenbelt Division. Dow AgroSciences (sells chlorpyrifos), Makhteshim Agan of North America (chlorpyrifos, diazinon) and Cheminova, Inc. (chlorpyrifos, malathion), are asking the court to set aside the NMFS biological opinion and its restrictions on crop protection products because they are arbitrary, capricious and not in accordance with the agency’s statutory requirements.

Why have agchem manufacturers moved so quickly and urgently to block off this NMFS opinion at the pass? Good reason: If allowed to stand, the proposal will set a dangerous precedent. Under court order, NMFS must complete assessments of 34 more agriculture products for the protection of salmonids in the next few years. This initial assessment is expected to set a precedent for the evaluations that follow. Unless problems with this initial opinion are corrected at this juncture, evaluations of other products are likely to be similarly flawed, so you have the “garbage in, garbage out” conundrum that drives ag industry scientists, manufacturers, growers and other industry participants absolutely bonkers.

There you have it in a nutshell, so to speak. So let’s admit some common sense truths: agriculture should always be concerned that the products it uses are safe to the consumers and the environment; unless we protect our food crops from the ravenous insects that compete with us in the food chain, there won’t be enough food to go around and what is left will be unaffordable to the majority of the world’s population.

One undeniable fact that environmental activists just don’t get is that pesticides are a necessity of modern agricultural production. You either use them, or you go hungry.

Restricting their use, when there is no obvious benefit to the environment and no assurance of protection for salmon and steelhead, is just plain lunacy.

Bans and restrictions can also impair the ability of California farmers to compete with growers overseas and cause tremendous financial risk and damage to their livelihoods and the stability of their farm operations.

One last, but important, point must be mentioned. While crop protection detractors always point to the “evil” done by pesticides, let’s remember the many lives that have been saved by their existence. Pesticides play a critical role in protecting public health, by controlling important disease vectors such as mosquitoes, which can carry the deadly West Nile virus and other diseases. By arbitrarily and unnecessarily restricting the use of these vital tools, ill-founded constraints such as those proposed by NMFS threaten to undermine the ability of municipalities and health agencies to control common diseases and protect its citizens.

The agchem companies bringing suit are asking the court to expedite the case so that a decision can be reached before Nov. 18, which is the day that the EPA is required by NMFS to have implemented the additional restrictions proposed by the biological opinion.

It is more than likely that the U.S. EPA will have to make a decision about how to incorporate the NMFS opinion into its product regulations. Agriculture and the general public will have to hope that the EPA will continue to take a strong and critical view of how this proposal was developed before it demands more restrictions that will impact crop protection and possibly lower the protections of public health.